Ethical Considerations in Workers’ Compensation Claims

Paula F. Smith

There are 4.9 million workers’ compensation claims filed every year. That means every day, there are thousands of claimants, adjusters, attorneys, and employers interacting multiple times a day in an attempt to resolve these claims.

A workers’ compensation claim moves fast and generates countless emails, phone calls, Zoom meetings, and documents in its wake. One key element of a claim that may be forgotten in the piles of emails and looming deadlines is the ethical obligations guiding interactions between employers, adjusters, attorneys, and injured workers.

Outlined here are a few pitfalls to avoid for those involved in these claims so the resolution of claims may continue smoothly.

Adjuster and Employer Contact with the Claimant

There are several reasons to directly contact an injured worker who may file a claim. Early in the process, when the claimant has not retained an attorney, direct communication between the injured party and the employer or insurance adjuster may be the best way to gather the relevant information necessary to resolve the claim. Furthermore, employer communication with an injured worker soon after the accident is one of the best ways to avoid litigation altogether.

A study conducted by the Workers’ Compensation Research Institute found that an employer who calls the injured worker within one week of the accident and communicates the employee’s value to the company reduces the chance of litigation by fifty percent (50%.)

However, that communication gets more complicated once the claimant retains legal counsel. When a claimant has legal representation, all communication with the injured worker regarding the claim must be made through the claimant’s counsel. This ethical obligation attaches directly to the attorney, but can implicate insurance adjusters and employers, as well.

For example, Georgia’s Rules of Professional Conduct, Rule 4.2, provides that an attorney cannot communicate with a person represented by counsel without the consent of that person’s legal representation. However, it is not just the attorney who should be concerned with this rule. Ex-parte communication—communication with a party without their attorney present—can create confusion, and undue influence on the process, and may lead to an ethical violation. The upshot is this: the best practice for attorneys, insurance adjusters, and employers involved in a workers’ compensation claim is to always deal with a represented claimant through the claimant’s attorney. If communication with the claimant is necessary, always get their counsel’s prior consent before contacting the claimant.

Adjuster and Employer Contact with the Physician

Depending on the state, the rules governing the ability of the employer, adjuster, or defense attorney to speak directly with the claimant’s doctor will vary. In Georgia, the state Supreme Court has held that the privacy requirements between doctor and patient typically subject to HIPPA’s purview are not in play. The legislature of Georgia had already enacted OCGA 34-9-207(a) which in part states that the employee is “… deemed to have waived any privilege or confidentiality concerning any communication related to the claim or history of the treatment of injury arising from the incident that the employee has had with any physician, including but not limited to, communications with psychiatrists or psychologists. The waiver shall apply to the employee’s medical history concerning any condition or complaint reasonably related to the condition for which such employee claims compensation.”

In Arby’s Restaurant Group, Inc. v McRae, 292 Ga. 242 (2012), the Georgia Supreme Court held that there were no legal grounds that prohibited an ex-parte oral communication between a treating physician and an employer to the extent confidentiality is waived by an employee in a workers’ compensation case. Of course, the Court in dicta made it clear that communications outside of the purview of the employee’s specific accident and injury were still off bounds. Other states still bar ex-parte communications with full HIPPA protections for injured workers.

Takeaway

The key to resolving any claim is good communication between all parties. This is a truth that prevails across jurisdictions.

Paula Smith practices Georgia Workers’ Compensation Defense with Willson Jones Carter & Baxley in Atlanta. She has thirty years of experience representing both self-insured and commercially insured employers in a wide array of workers’ compensation matters.